Frankhouser v. The Horst Grp.

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DALE C FRANKHOUSER, Plaintiff, v. THE HORST GROUP, INC., Defendant.

CIVIL No. 5:20-cv-03741-JMG

United States District Court, E.D. Pennsylvania

February 24, 2022

MEMORANDUM OPINION

JOHN M. GALLAGHER UNITED STATES DISTRICT COURT JUDGE

Plaintiff Dale Frankhouser claims that Defendant The Horst Group, Inc. (“Horst”) terminated his employment in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. and the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951 et seq. Horst now moves for summary judgment on both of Frankhouser's discrimination claims. Genuine issues of material fact remain, so the Court denies the motion.

I. FACTUAL BACKGROUND^[1]

A. Frankhouser's Position

Frankhouser was born in 1950 and began his employment at Horst in 1978 as a bookkeeper. (Def.'s Statement of Undisputed Facts ¶ 11, ECF No. 35 [hereinafter “DSOF”]; Pl.'s Responsive Statement of Facts ¶ 11, ECF No. 36 [hereinafter “PRSOF”].) Frankhouser later became an Information Technology (“IT”) manager, the position that he held until his termination in 2019. (DSOF ¶¶ 13, 133; PRSOF ¶ 13.) As an IT manager, Frankhouser's duties included ensuring that Horst's IT system “was stable, operating, [and] available . . . on demand.” (DSOF ¶ 15; PRSOF ¶ 15.) He was also responsible for safeguarding the “security of all of [Horst's] data.” (DSOF ¶ 15; PRSOF ¶ 15.)

Michael Giordano, Horst's Chief Financial Officer, started supervising Frankhouser in 2015. (DSOF ¶¶ 20, 22; PRSOF ¶¶ 20, 22.) As Frankhouser's direct supervisor, Giordano was the ultimate decisionmaker concerning Frankhouser's employment. (DSOF ¶ 24; PRSOF ¶ 24.)

B. Frankhouser's Performance

Sometime before 2018, several Horst stakeholders started complaining to Giordano about Frankhouser's performance. (DSOF ¶ 25; PRSOF ¶ 25.) For example, Jim Burnham, one of Horst's Presidents, informed Giordano of his “frustrations with [Frankhouser's] leadership and poor communication and concerns regarding cybersecurity, WiFi support, [and] 24/7 support.” (Appx. 140.) Frankhouser's performance was also measured against reports generated by two third-party IT consulting groups. The first report was issued in 2017, when Frankhouser retained Weidenhammer Services Corp. (“Weidenhammer”) to assess Horst's network security. (DSOF ¶ 42; PRSOF ¶ 42.) Weidenhammer's report identified several security threats to Horst's IT system. (DSOF ¶ 43; PRSOF ¶ 43.) Frankhouser directed his subordinate, Tim Barker, to remediate the shortcomings identified in the Weidenhammer report. (DSOF ¶ 44; PRSOF ¶ 44; Appx. 56-57.) Frankhouser did not independently verify whether Barker addressed “all items in [the Weidenhammer] report.” (Appx. 57, 60.) Nor did he present the Weidenhammer report to Giordano or the Key Leadership Team (“KLT”)-a consortium of Horst's Presidents and managers. (See Appx. 55, 87.)

In January 2018, the KLT convened to evaluate Horst's various departments. (DSOF ¶¶ 8, 50; PRSOF ¶¶ 8, 50.) To that end, the KLT produced a Strength, Weaknesses, Opportunities, and Threats report (“SWOT Report”). It identified the following as among the “weaknesses” of the IT department: “No backup for [Frankhouser]”; “Lack of depth of leadership - succession planning”; “Lack of frequent communication with KLT - no formal IT strategy to . . . build a strong competitive advantage.” (Appx. 167.) It identified the following as among the “threats” to the IT department: “Security Breaches” and “System integrity and breach - much could be happening to protect our system but you hear virtually nothing from IS management about that.” (Id.)

Giordano presented the SWOT Report to Frankhouser during a February 2018 meeting. (DSOF ¶ 55; PRSOF ¶ 55.) The parties dispute what happened during that meeting: according to Horst, Giordano warned Frankhouser that “this is not good.” (Appx. 72.) Giordano further testified that he instructed Frankhouser to develop “a strategic plan to . . . move the department forward” that would be presented at the next KLT meeting in April 2018. (Appx. 72-73.) Frankhouser, on the other hand, maintains that “[n]othing was ever told to [him] about any performance issues.” (See P.A. 28-29; see also Appx. 257 (“I did not have any conversations with Michael Giordano regarding my job performance. In fact, he did not have a yearly performance review with me for the last two years of my employment at Horst Group.”).) Frankhouser also believed that he was invited to the April 2018 KLT meeting just to discuss the installation of new phone systems-not to discuss the SWOT Report. (See PRSOF ¶ 59.) As such, he did not prepare a formal response to the SWOT Report in advance of the April 2018 KLT meeting. (See Appx. 65; see also PRSOF ¶ 61.)

Frankhouser attended the April 2018 KLT meeting and “there was a discussion regarding the SWOT [Report].” (Appx. 257.) According to several attendees, Frankhouser accused the KLT of “not keeping him in the loop.” (Appx. 73; see also Appx. 93 (“[Frankhouser] basically told the KLT they were the problem with IT.”); Appx. 114 (“[Frankhouser's] only presentation to the [KLT] in that meeting was that he didn't think any of the problems identified were his own, and that he thought they were the problem of the [KLT].”); DSOF ¶ 64.) Frankhouser's behavior was so disappointing in the eyes of the KLT that one of its members considered terminating him immediately thereafter. (See Appx. 79-80, 83.) While Frankhouser “did communicate [his] frustration with the lack of communication coming from members of the KLT, ” he maintains that he was not “directly accusatory” during the meeting. (P.A. 274.) He also notes that the KLT asked about his “succession plan” at the meeting. (See P.A. 12; Appx. 254 (“The KLT asked about my succession plans in April 2018. The meeting was supposed to be about a new phone system but turned out to actually be a SWOT . . . meeting about my department.”).)

After the April 2018 meeting, Giordano did not observe any improvements in communication from Frankhouser. (DSOF ¶ 66.) Frankhouser, by contrast, states that he “received no further communication as to what was expected of [him].” (P.A. 274.)

On May 30, 2018, Rick Watson, a member of the KLT, emailed Giordano stating that “[w]aiting for Dale isn't getting us anywhere fast enough. We need to discuss an executive level plan that you present to the KLT outlining what you see as the steps and actions we need to take to where we need it to be.” (P.A. 201.) The following month, Giordano started developing a plan to terminate Frankhouser. (See DSOF ¶ 68; PRSOF ¶ 68.) Giordano memorialized that plan in a document that was presented to the KLT. The document, titled “Change to IT department leadership, ” identified the following as among the reasons for terminating Frankhouser: “Lack of confidence to move the company forward in regards to IT”; “Lack of communication between IT department and KLT”; “Lack of communication between department itself”; and “Appearance of retired in place.” (P.A. 208.) It also provided a timeline for Frankhouser's termination: interviews for his replacement would occur in July 2018, and the “[n]ew person [would be] in place” the following month. (P.A. 208.)

But before Giordano executed that plan, Horst decided to hire Arraya Solutions (“Arraya”), a third-party consultant, to audit the company's IT system. (See DSOF ¶¶ 69-70; PRSOF ¶¶ 69- 70; P.A. 46 (“[W]e decided that we should be looking for a third-party consultant to come in and just kind of take a look at the department as a whole.”).) Watson testified that Arraya was retained, at least in part, to bolster the search for Frankhouser's replacement. (See P.A. 127 (“Generally I believe there was a discussion . . . but in order to do a search for [a] replacement, we ought to have a better understanding of our environment.”).) And Frankhouser emphasizes that the KLT continued to contemplate his termination even as Arraya performed its audits.^[2] For example, in a July 17, 2018 email, Giordano wonders whether Arraya offers a recruiting “service or if we need to go to someone else.” (P.A. 165.) An October 30, 2018 email circulated among the KLT reiterates that “we should proceed with the leadership transition (DF) plan discussed during our last KLT.” (P.A. 69-70.) Likewise, on November 2, 2018, Giordano emailed Arraya to ask for “a sample job description of the person [Arraya] would recommend to lead [Horst's] IT department.” (P.A. 183.) Sometime that month, Giordano asked Mary Geist, a human resources employee, “to pull together a severance letter for [Frankhouser].” (P.A. 88.)

Arraya ultimately issued three reports: (1) a Wireless Local Area Network (“WLAN”) site survey on October 22, 2018 (2) an overall Network Assessment in November 2018; and (3) a Vulnerability Assessment report on January 9, 2019 (collectively, “Arraya Reports”). (DSOF ¶ 74; PRSOF ¶ 74; Appx. 282, 304-05, 346.) In sum, the Arraya Reports “assessed the technical strengths and limitations of [Horst's] IT systems and opined as to whether [they] met best practices.” (DSOF ¶ 75; PRSOF ¶ 75.) The WLAN report made “recommendations for how the wireless network should be designed to meet today's requirements.” (Appx. 306.) The Network Assessment report “identified overall systems issues for [Horst's] Local Area Networks (LAN), Wide Area Networks (WAN) and Virtual Private Area Networks (VPN).” (DSOF ¶ 78; PRSOF ¶ 78.) Finally, the Vulnerability Assessment report identified “cyber security vulnerabilities that may exist across [Horst's] enterprise network.” (Appx. 284.) It found a handful of external and internal vulnerabilities, ranging from “urgent” to “minimal, ” in Horst's network. (See Appx. 287, 292.) Frankhouser admits that Horst faced ...